Cushman on the Hughes-Roberts Visit

Barry Cushman has posted The Hughes-Roberts Visit, which is forthcoming in the Green Bag 15 (2012). It questions what has remained, despite the problematic nature of the source, one of the strongest pieces of evidence that Hughes was intent on moving the Court leftward (that is, back toward the political center) in the 1936 Term.

In the 1936 case of Morehead v. New York ex rel. Tipaldo, Justice Owen Roberts voted to invalidate New York's minimum wage law for women. The following spring, Roberts joined the majority in upholding Washington State's minimum wage statute. How best to account for this "switch" is a central preoccupation of New Deal constitutional history. In recent years, a number of scholars have called attention to a visit that Chief Justice Charles Evans Hughes and his wife made to Roberts' Pennsylvania farm in the summer of 1936, in the wake of the public firestorm following the announcement of the Tipaldo decision. As Mrs. Roberts reported to her good friend, Secretary of Labor Frances Perkins, Hughes and Roberts were engaged in nearly constant conversation throughout the afternoon, the evening, and the following morning of the 24-hour visit. We do not know what the subjects of those conversations were. Nevertheless, some have suggested that Hughes may have been trying to persuade his junior colleague of two things: first, that the recent spate of decisions invalidating various economic programs had made the Court as an institution unpopular and vulnerable to attack; and second, of the consequent need for Roberts to support economic and social welfare legislation that would be challenged before the Court in the coming term. On this view, it may well have been the Chief Justice's persuasive efforts that brought about Roberts' change of position in 1937.

This story has considerable intuitive, human appeal, but it appears to suffer from a serious flaw. For the transcript of the Columbia Oral History Project interview with Secretary Perkins, which is the lone primary source upon which this account purports to rely, seems clearly to place the visit and the conversations in question not in the summer of 1936, but instead during the summer of 1935. If that placement is correct, then Hughes visited Roberts before Roberts cast his vote in Tipaldo; before both Hughes and Roberts voted to invalidate the Agricultural Adjustment Act of 1933 in United States v. Butler (1936); and before both Hughes and Roberts voted to invalidate provisions of the Bituminous Coal Conservation Act of 1935 in Carter v. Carter Coal (1936). Thus, were one tempted to draw inferences about the content of the discussions that Hughes and Roberts had during the visit, those inferences would be quite different from those suggested by scholars placing the visit in 1936.